Kauffman v. Nelson

• Decision Date: 22 June 1909
• Docket Number: 267
• Citation: 73 A. 1105,225 Pa. 174
• Parties: Kauffman v. Nelson, Appellant
• Court: Pennsylvania Supreme Court

73 A. 1105

225 Pa. 174

Kauffman v. Nelson, Appellant

No. 267

Supreme Court of Pennsylvania

June 22, 1909

Argued March 8, 1909

Appeal, No. 267, Jan. T., 1908, by defendant, from judgment of C.P. Franklin Co., Dec. T., 1907, No. 38, on verdict for plaintiff in case of Marie Kauffman v. Thomas M. Nelson. Reversed.

Trespass to recover damages for personal injuries. Before GILLAN, P.J.

The facts are stated in the opinion of the Supreme Court.

Defendant presented the following points:

3. If the jury believe from the evidence that when the plaintiff stepped from the car she failed to look whether a vehicle was approaching, and that, with the automobile coming toward her plainly in her view, if she chose to look, she took the risk of getting across the street in front of it, she was guilty of such contributory negligence as will defeat her recovery in this case. Answer: That point is not affirmed as written. If, however, the plaintiff saw the vehicle coming and by standing still could have avoided it, but chose to cross the street immediately in front of it, she was guilty of contributory negligence and cannot recover. [1]

4. If the jury believe from the evidence that when the plaintiff alighted from the car the automobile of the defendant was approaching her at a distance from her of twenty to thirty feet, or thereabout, and in her plain and unobstructed view if she chose to look, it was negligence in her under such circumstances to attempt to cross the street in front of the automobile, if the jury further believe that by standing at the foot of the car steps the automobile would have passed her in safety. Answer: That point is affirmed. If you believe that she saw the automobile coming, and by standing still when she saw it, it would have passed her without striking her, she was guilty of contributory negligence; but you will remember the testimony; what she says about it, and what the others say about it. [2]

Verdict and judgment for plaintiff for $4,666.95. Defendant appealed.

Errors assigned among others were (1, 2) above instructions, quoting them.

The first and second assignments are sustained, and the judgment is reversed with a venire facias de novo.

O. C Bowers, with him J. R. Ruthrauff and W. O. Nicklas, for appellant. -- Plaintiff having voluntarily placed herself in a position of danger, and having taken the risk, after seeing the automobile comparatively close upon her, of crossing the street in front of it, and there being no conflict of testimony as to this, we submit that the question of her contributory negligence was one of law for the court and not one of fact for the jury, and that the court should have given binding instructions in favor of the defendant: Gray v. Traction Co., 198 Pa. 184; Tyson v. Union Traction Co., 199 Pa. 264; Flanagan v. Railway Co., 163 Pa. 102; Greer v. Tyson, 185 Pa. 356; Baker v. Fehr, 97 Pa. 70.

It was the duty of the plaintiff to look out for approaching vehicles when she stepped from the car into the street: Harris v. Commercial Ice Co., 153 Pa. 278; Baker v. Fehr, 97 Pa. 70; Schmidt v. McGill, 120 Pa. 405; Hennessey v. Taylor, 189 Mass. 583.

William S. Hoerner, with him Sharpe & Elder, for appellee. -- The case was properly submitted to the jury: McCracken v. Traction Co., 201 Pa. 378; Baker v. Fehr, 97 Pa. 70; Schmidt v. McGill, 120 Pa. 405; Hennessey v. Taylor, 189 Mass. 583; O'Brien v. Lavin, 11 Pa. Dist. Rep. 729; Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320; Railway Co. v. Hudgins, 7 L.R.A. (N.S.) 152; Shaffer v. Coleman, 35 Pa.Super. 386; Bodge v. Philadelphia, 167 Pa. 492; Gregory v. Slaughter, 8 L.R.A. (N.S.) 1228; Simeone v. Lindsay, 65 A. Repr. 778.

Before FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE FELL:

This action was to recover for injuries alleged to have been caused by the negligence of the defendant in driving his automobile. The plaintiff got off the rear platform of a trolley car that was standing at a regular stopping place but not at a street crossing, in Chambersburg. The distance between the car steps and the curb was fifteen feet. What the plaintiff did after she had stepped from the car is left by the testimony in her behalf in some doubt. She testified that she left the car with a "swinging step" and walked directly towards the foot pavement; that she first saw the automobile after she had taken two steps in the street and was five or six feet from the car, and it was then fifty or sixty feet away and approaching the front of the car; that she would have reached the pavement in safety if the automobile had been kept in a straight course, but that it was turned towards the curb, and it struck her as she was stepping on the pavement. At one time she said that she did not look at all to see whether anything was coming on the street until she had taken two steps after alighting from the car; and at another time she said that she...